2005 PLP 1754 (YLR)

The brief facts out of which present revision petition arises are that the respondents filed suit for partition of suit land against the petitioner in the Court of Civil Judge, Lahore. The petitioner filed written statement controverting the allegation levelled in the plaint. The learned trial Court framed the issues on 2`3-9-2003. Thereafter, the respondent filed an application under Order XVIII, rule 1 read with Order XIV, rule 5 of C.P.C., which was dismissed by the learned trial Court vide order, dated 13-10-2003. The learned trial Court has given last opportunity with costs of Rs.100 to the petitioner/defendant and thereafter the learned trial Court closed the evidence on 25-9-2004 due to non -production of evidence by petitioner as she was given so many opportunities. The petitioner being aggrieved went to Revisional Court and last more opportunity was given to the petitioner by the Revisional Court. The petitioner was given short dates as is evident from orders sheets i.e. 10-2-2005, 5-3-2005, 14-3-2005, 21-3-2005, 26-3-2005, 30-3-2005 and 4-4-2005 and no other case was adjourned to any date till May, 2005. The petitioner being aggrieved filed transfer application before the District Judge, Lahore, who dismissed the same vide order, dated 7-4-2005. Hence, the present revision petition.

2. The learned counsel of the petitioner submits the learned District Judge passed the impugned order without perusing the record of the learned trial Court, therefore, the impugned order of the learned District Judge is not sustainable in the eye of law. He further submits that case was fixed on 14-3-2005, when mother of petitioner's witness aged 99 years was in the Hospital and the petitioner's witness requested the learned trial Court for recording of evidence or to adjourn the case, but the learned trial Court did not accept the request of the petitioner's witness, therefore, the observations of the learned District Judge are not borne out from the record. He further submits that the case of the petitioner was adjourned for short dates whereas in other cases, the learned trial Court has fixed the dates in the month of May, 2005, therefore, it is discrimination with the petitioners, therefore, the petitioner is prejudiced by the act of the Court, but this fact was not considered by the learned District Judge in the impugned order.

3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.

4. The sole grievance of the petitioner that the petitioner appeared before the learned trial Court and the learned trial Court fixed the dates by granting short dates in this case. There is no other allegation of malice in the contents of application filed by the petitioner before the learned District Judge as well as before this Court against the learned trial Court. It is settled principle of law that general allegation of malice is not sustainable in the eye of law, as per principle laid down by the Superior Courts in the following judgments: "Federation of Pakistan v. Saeed Ahmad Khan and others" (PLD 1974 SC 151), "Aman-ullah Khan and others v. Federation of Pakistan and others" (PLD 1990 SC 1092), "Shah Jehan, v. Special Judge, Anti-Corruption and others" (1992 PCr.LJ 1982), "Muhammad Malik v. Muhammad Farooq anal 2 others" (1993 PCr.LJ 1362), "Mushtaq Ahmad v. Mst. Rajan and others" (NLR 1994 Cr.LJ 652, "Abdul Sattar and others v. The State" (1993 PCr.LJ 614) and "Imam Bux v. Shadi Khan and 4 others" (1996 PCr.LJ 933). Mere adjourning the case within short dates, is not reflected that the learned trial Court is against the petitioner. The impugned order of the learned District Judge is consonance with law laid down by the Superior Courts in the following judgments:-- "Hakim Ali and others v. Muhammad Ashraf" (1994 CLC 1555), "Hakim Ali and others v. Muhammad Ashraf" 1994 CLC 1655 and "Zafar Iqbal v. Manzoor Hussain" 1994 CLC

886. The learned District Judge has given findings against the petitioner to the extent that the petitioner wants to delay the proceedings, which is in accordance with law laid down in "Ch. Nusrat ullah v. Athar Jamil" (1982 SCMR 300).

5. It is settled principle of law that this Court has very limited jurisdiction to set aside the findings of the learned District Judge while exercising powers under section 115 of C. P. C. as per law laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras" (PLD 1949 PC 26). The relevant observation is as follow:-- "This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by counting some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact of law." The judgment of the Privy Council was considered and relied upon by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood" (1985 CLC 657).

6. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No. 1146 of 1984 vide judgment, dated 31-3-1985 which was re-affirmed and approved by the Honourable Supreme Court in "Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir" (PLD 1988 SC 625). The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. However, in the interest of justice and fairplay, let copy of this petition be sent to the learned trial Court, who is directed to submit his comments along with orders sheets in the administrative side, within one month. H.B.T./N-38/L Revision dismissed.